View all text of Subpart A [§ 401 - § 409A]
§ 409A. Inclusion in gross income of deferred compensation under nonqualified deferred compensation plans
(a) Rules relating to constructive receipt
(1) Plan failures
(A) Gross income inclusion
(i) In general
If at any time during a taxable year a nonqualified deferred compensation plan—
(I) fails to meet the requirements of paragraphs (2), (3), and (4), or(II) is not operated in accordance with such requirements, all compensation deferred under the plan for the taxable year and all preceding taxable years shall be includible in gross income for the taxable year to the extent not subject to a substantial risk of forfeiture and not previously included in gross income.
(ii) Application only to affected participants
(B) Interest and additional tax payable with respect to previously deferred compensation
(i) In general
If compensation is required to be included in gross income under subparagraph (A) for a taxable year, the tax imposed by this chapter for the taxable year shall be increased by the sum of—
(I) the amount of interest determined under clause (ii), and(II) an amount equal to 20 percent of the compensation which is required to be included in gross income.(ii) Interest
(2) Distributions
(A) In general
The requirements of this paragraph are met if the plan provides that compensation deferred under the plan may not be distributed earlier than—
(i) separation from service as determined by the Secretary (except as provided in subparagraph (B)(i)),
(ii) the date the participant becomes disabled (within the meaning of subparagraph (C)),
(iii) death,
(iv) a specified time (or pursuant to a fixed schedule) specified under the plan at the date of the deferral of such compensation,
(v) to the extent provided by the Secretary, a change in the ownership or effective control of the corporation, or in the ownership of a substantial portion of the assets of the corporation, or
(vi) the occurrence of an unforeseeable emergency.
(B) Special rules
(i) Specified employees
(ii) Unforeseeable emergency
For purposes of subparagraph (A)(vi)—
(I) In general(II) Limitation on distributions(C) Disabled
For purposes of subparagraph (A)(ii), a participant shall be considered disabled if the participant—
(i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or
(ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the participant’s employer.
(3) Acceleration of benefits
(4) Elections
(A) In general
(B) Initial deferral decision
(i) In general
(ii) First year of eligibility
(iii) Performance-based compensation
(C) Changes in time and form of distribution
The requirements of this subparagraph are met if, in the case of a plan which permits under a subsequent election a delay in a payment or a change in the form of payment—
(i) the plan requires that such election may not take effect until at least 12 months after the date on which the election is made,
(ii) in the case of an election related to a payment not described in clause (ii), (iii), or (vi) of paragraph (2)(A), the plan requires that the payment with respect to which such election is made be deferred for a period of not less than 5 years from the date such payment would otherwise have been made, and
(iii) the plan requires that any election related to a payment described in paragraph (2)(A)(iv) may not be made less than 12 months prior to the date of the first scheduled payment under such paragraph.
(b) Rules relating to funding
(1) Offshore property in a trust
In the case of assets set aside (directly or indirectly) in a trust (or other arrangement determined by the Secretary) for purposes of paying deferred compensation under a nonqualified deferred compensation plan, for purposes of section 83 such assets shall be treated as property transferred in connection with the performance of services whether or not such assets are available to satisfy claims of general creditors—
(A) at the time set aside if such assets (or such trust or other arrangement) are located outside of the United States, or
(B) at the time transferred if such assets (or such trust or other arrangement) are subsequently transferred outside of the United States.
This paragraph shall not apply to assets located in a foreign jurisdiction if substantially all of the services to which the nonqualified deferred compensation relates are performed in such jurisdiction.
(2) Employer’s financial health
In the case of compensation deferred under a nonqualified deferred compensation plan, there is a transfer of property within the meaning of section 83 with respect to such compensation as of the earlier of—
(A) the date on which the plan first provides that assets will become restricted to the provision of benefits under the plan in connection with a change in the employer’s financial health, or
(B) the date on which assets are so restricted,
whether or not such assets are available to satisfy claims of general creditors.
(3) Treatment of employer’s defined benefit plan during restricted period
(A) In general
If—
(i) during any restricted period with respect to a single-employer defined benefit plan, assets are set aside or reserved (directly or indirectly) in a trust (or other arrangement as determined by the Secretary) or transferred to such a trust or other arrangement for purposes of paying deferred compensation of an applicable covered employee under a nonqualified deferred compensation plan of the plan sponsor or member of a controlled group which includes the plan sponsor, or
(ii) a nonqualified deferred compensation plan of the plan sponsor or member of a controlled group which includes the plan sponsor provides that assets will become restricted to the provision of benefits under the plan to an applicable covered employee in connection with such restricted period (or other similar financial measure determined by the Secretary) with respect to the defined benefit plan, or assets are so restricted,
such assets shall, for purposes of section 83, be treated as property transferred in connection with the performance of services whether or not such assets are available to satisfy claims of general creditors. Clause (i) shall not apply with respect to any assets which are so set aside before the restricted period with respect to the defined benefit plan.
(B) Restricted period
For purposes of this section, the term “restricted period” means, with respect to any plan described in subparagraph (A)—
(i) any period during which the plan is in at-risk status (as defined in section 430(i)),
(ii) any period the plan sponsor is a debtor in a case under title 11, United States Code, or similar Federal or State law, and
(iii) the 12-month period beginning on the date which is 6 months before the termination date of the plan if, as of the termination date, the plan is not sufficient for benefit liabilities (within the meaning of section 4041 of the Employee Retirement Income Security Act of 1974).
(C) Special rule for payment of taxes on deferred compensation included in income
If an employer provides directly or indirectly for the payment of any Federal, State, or local income taxes with respect to any compensation required to be included in gross income by reason of this paragraph—
(i) interest shall be imposed under subsection (a)(1)(B)(i)(I) on the amount of such payment in the same manner as if such payment was part of the deferred compensation to which it relates,
(ii) such payment shall be taken into account in determining the amount of the additional tax under subsection (a)(1)(B)(i)(II) in the same manner as if such payment was part of the deferred compensation to which it relates, and
(iii) no deduction shall be allowed under this title with respect to such payment.
(D) Other definitions
For purposes of this section—
(i) Applicable covered employee
The term “applicable covered employee” means any—
(I) covered employee of a plan sponsor,(II) covered employee of a member of a controlled group which includes the plan sponsor, and(III) former employee who was a covered employee at the time of termination of employment with the plan sponsor or a member of a controlled group which includes the plan sponsor.(ii) Covered employee
(4) Income inclusion for offshore trusts and employer’s financial health
(5) Interest on tax liability payable with respect to transferred property
(A) In general
If amounts are required to be included in gross income by reason of paragraph (1), (2), or (3) for a taxable year, the tax imposed by this chapter for such taxable year shall be increased by the sum of—
(i) the amount of interest determined under subparagraph (B), and
(ii) an amount equal to 20 percent of the amounts required to be included in gross income.
(B) Interest
(c) No inference on earlier income inclusion or requirement of later inclusion
(d) Other definitions and special rules
For purposes of this section:
(1) Nonqualified deferred compensation plan
The term “nonqualified deferred compensation plan” means any plan that provides for the deferral of compensation, other than—
(A) a qualified employer plan, and
(B) any bona fide vacation leave, sick leave, compensatory time, disability pay, or death benefit plan.
(2) Qualified employer plan
The term “qualified employer plan” means—
(A) any plan, contract, pension, account, or trust described in subparagraph (A) or (B) of section 219(g)(5) (without regard to subparagraph (A)(iii)),
(B) any eligible deferred compensation plan (within the meaning of section 457(b)), and
(C) any plan described in section 415(m).
(3) Plan includes arrangements, etc.
(4) Substantial risk of forfeiture
(5) Treatment of earnings
(6) Aggregation rules
(7) Treatment of qualified stock
(e) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations—
(1) providing for the determination of amounts of deferral in the case of a nonqualified deferred compensation plan which is a defined benefit plan,
(2) relating to changes in the ownership and control of a corporation or assets of a corporation for purposes of subsection (a)(2)(A)(v),
(3) exempting arrangements from the application of subsection (b) if such arrangements will not result in an improper deferral of United States tax and will not result in assets being effectively beyond the reach of creditors,
(4) defining financial health for purposes of subsection (b)(2), and
(5) disregarding a substantial risk of forfeiture in cases where necessary to carry out the purposes of this section.
(Added Pub. L. 108–357, title VIII, § 885(a), Oct. 22, 2004, 118 Stat. 1634; amended Pub. L. 109–135, title IV, § 403(hh)(2), Dec. 21, 2005, 119 Stat. 2631; Pub. L. 109–280, title I, § 116(a), (b), Aug. 17, 2006, 120 Stat. 856, 858; Pub. L. 110–458, title I, § 101(e), Dec. 23, 2008, 122 Stat. 5100; Pub. L. 115–97, title I, § 13603(c)(2), Dec. 22, 2017, 131 Stat. 2164; Pub. L. 115–141, div. U, title IV, § 401(a)(80), Mar. 23, 2018, 132 Stat. 1187.)